Commentary on the NLRB’s Columbia University Decision
In August, the Labor Board reversed thirty years of precedent in its Browning-Ferris decision. It is poised to do it again. This time the precedent dates back to 1973.
In Browning-Ferris, the Board expanded the joint employer test from whether the host employer exercises direct control over agency employees to include whether the host employer exercises indirect control (e.g., host employer supervisors tell agency supervisors what their employees should do) and/or have possible control (e.g., the contract with the agency retains direct or indirect control over agency employee wage/hour costs).
Just in case you have not noticed, the Labor Board has created a popular, new protected class – workplace complainers. Complainers may be a cancer in your workforce, but for the very reason they are a cancer, they are protected by the National Labor Relations Act.
Yesterday, the Fifth Circuit denied the NLRB’s petition for en banc review of its December 3, 2013 decision wherein the Fifth Circuit refused to enforce the NLRB’s decision invalidating class action waivers in mandatory employee arbitration agreements.
The Office of Special Counsel for Immigration Related Discrimination (OSC) has been very busy in the last few weeks. While many employers and their employees have been enjoying traditional August vacations, the OSC has been conducting investigations, bringing suit and issuing advisory opinions on discrimination and compliance in the I-9 process.
Judge David Norton of the federal district court in South Carolina in a case brought by the South Carolina Chamber of Commerce on Friday, April 13, held that the rule announced by the NLRB in September of last year that employers must post a Notice of Employee Rights under the National Labor Relations Act exceeded the Board’s statutory authority and is, therefore, unlawful.